Overview of the Past and Present Justice-Related Efforts

National level

The debate about justice processes to deal with the impact of the armed conflict in Ukraine has been ongoing for a number of years. While armed hostilities broke out as early as 2014, the start of the war in public discourse is often referred to as 24 February 2022, when Russia launched its full-scale invasion of Ukraine.[6] However, national and international judicial bodies have been investigating the consequences of the occupation of Crimea and armed hostilities in the territory of certain regions in Donetsk and Luhansk oblasts for more than ten years now.

Within a few months of the outbreak of the armed conflict, Ukraine legally recognised Crimea as an occupied territory. On 15 April 2014, the Law of Ukraine ‘On Ensuring Civil Rights and Freedoms, and the Legal Regime on the Temporarily Occupied Territory of Ukraine’ was adopted. This law acknowledged Russia’s responsibility for these territories and denied any territorial rights that Russia might have had with regard to this region[7]. On 13 April 2014, an anti-terrorist operation was announced[8], which had an impact on the legal classification of the events taking place in Donbas[9]. Subsequently, the vast majority of alleged crimes committed during active hostilities were treated as acts of terrorism and representatives of the illegal armed groups of the self-proclaimed ‘LPR’ and ‘DPR’ were regarded as members of terrorist organisations. The legal regime of the anti-terrorist operation was sufficient for Ukrainian courts to substantiate their decisions under Article 258 (‘Act of terrorism’) and Article 258-3 (‘Creation of a terrorist group or terrorist organisation’) of the Criminal Code of Ukraine.

Alleged violations of the laws and customs of war have also been recorded since 2014, though in 2014 it was rather an exception than the rule that such acts were charged under Article 438 (‘Violation of rules and customs of war’) of the Criminal Code of Ukraine. For example, only one criminal offence was registered under this charge in 2014, while 1,499 offences were charged as acts of terrorism[10]. Furthermore, alleged war crimes were also recorded under provisions relating to ordinary crimes, such as Article 115 (‘Premeditated murder’), Article 146 (‘Illegal confinement’), etc. of the Criminal Code of Ukraine. It is impossible to identify them in the general statistics in order to determine the exact number of different legal classification and charges. One can only say that this was a fairly common practice, as such charges were later changed to Article 438 of the CCU following the full-scale invasion. However, Article 438 of the CCU was more commonly used by the Ukrainian authorities to classify the events taking place on the Crimean Peninsula.

From 2020 onwards an increase in the number of registered criminal proceedings specifically regarding the violations of the laws and customs of war can be seen, although this could not be said to have become widespread[11]. At the same time, the case law in the proceedings under Article 438 of the CCU had not been sufficiently developed during the eight years of the ongoing armed conflict. By the start of 2022, there were three court decisions in such cases, and only one of them was against the defendant who was actually detained and physically present in the courtroom. The other two cases were considered in absentia. Moreover, those were the cases against lower-level perpetrators who were the representatives of illegal armed groups of the self-proclaimed ‘LPR’ and ‘DPR.’

Russian soldiers who were captured and detained by Ukrainians as PoWs were prosecuted under Article 437 of the CCU (‘Planning, preparation and waging of an aggressive war’) in conjunction with Article 110 of the CCU (‘Trespass against territorial integrity and inviolability of Ukraine’) for crossing the border, being in the territory of Ukraine, participating in hostilities there and other provisions which concerned crossing of the border. In addition, the connection of the accused persons with the self-proclaimed ‘LPR’ and ‘DPR’ was categorised for charging purposes as an act of terrorism (Articles 258, 258-3 of the CCU). Later, throughout the duration of the ATO/JFO (Joint Forces Operation[12]), the convicted Russian soldiers were used as an ‘exchange fund’ for the detained Ukrainian soldiers and civilian hostages in Donbas, so they did not actually serve their court-ordered sentences.

The situation concerning the investigation and prosecution of crimes under international law changed dramatically after 24 February 2022. Since the start of Russia's full-scale invasion of Ukraine, virtually all acts committed in the armed conflict have been charged as violations of the laws and customs of war. In 2022 alone, 60,387[13] criminal offences received this legal classification, and there were 53 463 offences registered in this category in 2023[14]. The registered number of offences charged under Article 438 of the CCU has grown consistently since. The Office of the Prosecutor General provides daily updates on the number of the investigations opened on the official website[15]. At the same time, there is a growing number of investigations classified as initiating and waging aggressive war, in line with the interpretation of the crime of aggression within Ukrainian law. Since February 2022, law enforcement agencies also regularly charge certain acts amounting to crimes under international law as crimes against the foundations of national security, especially acts committed in the territories liberated from Russian control by Ukrainian forces.

Since the full-scale invasion, the number of Russian military personnel detained as prisoners of war has increased significantly. This has led to the Ukrainian authorities to open proceedings against certain military personnel who were in Ukraine’s custody. In February – March 2022, they were prosecuted under Article 110 (‘Trespass against territorial integrity and inviolability of Ukraine’), Article 332-2 (‘Illegal crossing of the state border of Ukraine’), and Article 437 (‘Planning, preparation and waging of an aggressive war’) of the CCU — in effect, for crossing the border and participating in armed hostilities. However, it is incontrovertible that the legal status of a prisoners of war provides for the guarantees to be granted to such persons in accordance with the Convention relative to the Treatment of Prisoners of War of 12 August 1949, protecting them from such prosecution[16]. As the Ukrainian authorities started to become aware of the combatant’s immunity under the international humanitarian law, the proceedings against Russian soldiers gradually started to be opened for the violation of the laws and customs of war[17]. By late 2023, 470 people had been indicted on war crimes related charges (served a notice of suspicion), 316 indictments had been sent to court, and 73 people had been convicted[18] — it should be noted that these figures include both cases against actual detainees and those prosecuted in absentia. Such quick results raise questions as to the quality of the investigations and evidence collected.

After 24 February 2022, Russian officials were prosecuted in absentia under Article 110 of the CCU (‘Trespass against territorial integrity and inviolability of Ukraine’), sometimes in conjunction with Article 437 of the CCU (‘Planning, preparation and waging of an aggressive war’). In particular, Russian officials faced charges for the recognition of the ‘independence’ of the self-proclaimed ‘L/DPR’ and voting for the accession of certain regions of Ukraine to the Russian Federation[19]. Courts in different regions of Ukraine are already delivering verdicts in such proceedings despite the ongoing discussions as to whether such individuals enjoy immunity from prosecution[20].

Following the full-scale invasion, the justice system of Ukraine has been trying to respond to society's demand for justice. Public trials in courts show that the state is primarily focused on punishing rather than achieving justice. A testament to that are the quick televised trials over low ranking Russian military personnel, formalistic approach to ensuring their defence[21]. Proving the individual criminal responsibility of accused persons to a level of “beyond reasonable doubt” for international crimes is a complex task that demands specific expertise, skills, and resources from all parties to the specific justice processes as well as perhaps most importantly – the willingness of the state to ensure high quality of fair independent and impartial justice for accused persons as well as – crucially – victims. Ensuring such a necessary quality of justice is undoubtedly challenging due to various objective reasons such as the ongoing armed conflict and due to the overall lack of safety and security experienced in different parts of Ukraine. In addition, significant legislative limitations (see below) have given rise to problematic issues with criminal procedures. The result of these challenges, coupled with a significant public pressure for justice has led to a situation where investigations can be said to have been rushed and trials unduly expedited at the expense of high quality (including scrupulously fair) justice for parties to the proceedings, as well as victims. The result of justice proceedings which do not meet the highest international standards calls into question the fairness and impartiality of Ukraine’s justice system and consequently its ability to deliver effective and meaningful justice to the victims of grave crimes.

Based the above, following conclusions and characteristics of the national justice system undertaking proceedings in relation to the the war in Ukraine can be identified:

• The armed conflict in Ukraine has been ongoing for more than ten years, presenting significant and often unavoidable challenges to the pursuit of justice for crimes under international law. However, the Ukrainian justice system has not yet effectively or efficiently adapted to these challenges in its legal and judicial system which have arguably existed before 2014. Rather the authorities have adopted an approach which has sought to conform or “make-do” with the current situation.

For instance, the Ukrainian authorities have largely maintained the same approach as that used for investigating and prosecuting “ordinary” crimes in cases of crimes under international law. This means that violations of laws and customs of war are considered without taking into account their specific characteristics.

• The immense impact of the armed conflict on the Ukrainian justice system has served to paralyse the justice system as a whole as well as hinder the enforcement of judgements in cases of ordinary crimes which continue to be committed on a daily basis.

• The national legal framework is not currently equipped to address the challenges posed by the armed conflict or to undertake investigations and prosecutions into all relevant international crimes which meet international standards. Present amendments to certain laws and regulations appear to be primarily reactive in nature and fail to tackle the more fundamental overall transformation to the Ukrainian legal framework which is required as a matter of priority. On the other hand, the piecemeal process of making legislative changes does not consider how these changes in themselves might affect current investigative and prosecutorial practices, as well as ongoing justice processes which in turn could lead to further issues for practitioners and the judicial authorities as a result.

• The Ukrainian national legal framework currently primarily directs law enforcement agencies towards investigating individual and direct perpetrator offences. At the same time, most international crimes and related justice proceedings require a systematic analytical approach – including, for example, the investigation of leadership and command structures, widespread and systematic gathering of different types of evidence, and investigations into direct perpetrators as well as higher-level indirect perpetrators, – rather than concentrating solely on individual direct perpetrators or discrete facts in silo. In the case of crimes under international law, such systematic investigations will impact the legal classification of certain acts and the nature of the individual responsibility of certain perpetrators which may more appropriately reflect the nature of the commission of crimes under international law, perhaps committed as part of military operations or pursuant to a state policy.

• It appears that the future of Ukrainian national justice will involve holding trials in absentia for the crimes under international law. Indeed, the experience gained from more than ten years of the ongoing armed conflict in Ukraine demonstrates that these types of proceedings are the ones most frequently used by the Ukrainian justice system. However, it remains to be seen whether this approach is capable of ensuring that the perpetrators are actually brought to justice. Presently, such trials serve as tools for producing statistics and creating a false impression that Ukraine is actively administering justice, while de facto the needs of victims are often overlooked by the authorities and courts, and perpetrators of grave crimes continue to evade accountability. In more than ten years of the armed conflict in Ukraine, there has not been a single documented instance, where a sentence issued as result of the trial in absentia has been carried out.

• Given the extensive volume of opened investigations resulting from the full-scale invasion, the Ukrainian justice system is currently primarily concentrated on investigating these incidents. Consequently, in practice, the internal policy of law enforcement agencies has placed incrementally less emphasis on the incidents involving crimes under international law that occurred in Crimea and Donbas before 24 February 2022. These incidents have not been thoroughly examined, even though they are a significant phase and a root cause (impunity for the international crimes that had been committed during 2014-2022 arguably served as a foundation for continued commission of such crimes following the invasion as a matter of Russia’s state policy) of the events that followed in 2022. The interests and rights of the victims of crimes committed from 2014-2022, therefore, remain neglected.

International level

Compared to the previous period of the armed conflict from 2014 to 2022 from the onset of the full-scale invasion, the international community has shown an exceptional level of attention to pursuing international justice in the context of the Ukrainian situation:

• 43 States Parties to the Rome Statute referred the situation in Ukraine for the investigation by the International Criminal Court. Consequently, the Office of the Prosecutor of the ICC has been conducting proceedings concerning the situation in Ukraine since March 2022. Arrest warrants have already been issued for the Russian President and the Children's Ombudsperson[23], later followed by the two arrest warrants against Russian military commanders[24].
• Due to a large number of people displaced by Russia’s war against Ukraine and now residing in the countries of Europe, America, and Asia, reportedly 26 states[25] have initiated legal proceedings under the principle of universal jurisdiction mechanism. Notably, the United States of America also amended its national legislation to make it easier pursue individual criminal responsibility of those allegedly responsible for grave crimes committed in Ukraine[26].
• Eurojust has established a Joint Investigative Team (JIT), which included Lithuania, Poland, Ukraine, Estonia, Latvia, Slovakia, and Romania. The ICC also joined the JIT.[27]
• The United States of America, the European Union, and the United Kingdom have allocated funding and created the Atrocity Crimes Advisory Group to assist the OPG.[28]
• Many countries, such as France and the Netherlands, have sent and continue to send national investigators and forensic experts to support their Ukrainian counterparts, organise trainings, and provide equipment for expert investigations and procedural actions.[29]
• New platforms, such as the Dialogue Group, are being established and existing ones are being used to address the issue of bringing perpetrators to justice, albeit primarily focusing on the senior leadership of the Russian Federation[30], etc.
• The International Center for Prosecution of Crime of Aggression against Ukraine (ICPA) was opened in the Hague, the Netherlands, tasked with supporting the preparation of criminal cases of Russian military aggression against Ukraine by securing crucial evidence and facilitating case-building processes at an early stage.[31]
• The Independent International Commission of Inquiry on Ukraine was established by the Human Rights Council on 4 March 2022 according to resolution 49/1 to investigate all alleged violations and abuses of human rights, violations of international humanitarian law and related crimes in the context of the aggression against Ukraine by the Russian Federation.[32]
• The Council of Europe created a Register of Damages for Ukraine as a first step towards an international compensation mechanism for the victims of Russian Aggression[33]. On 2 April 2024 it was officially opened for submission of applications[34].

Due to a large number of diverse initiatives, challenges exist in effectively coordinating the diverse number of international justice actors in a comprehensive and strategic manner, avoiding the duplication of efforts, overcoming divergences in different legal frameworks of each actor and establishing common standards (such as the standards used for evidence collection, for example).

In relation to the donation to Ukraine of trainings and other investigative and prosecutorial capacity, the failure to account for the unique aspects of the national context including the existing judicial architecture and, in particular, existing Ukrainian legislation relevant to investigating and prosecuting crimes under international law, brings two significant challenges. On the one hand, they detract from the working hours and staff, which in turn complicates on-ground efforts amid the already challenging circumstances of the ongoing armed conflict. On the other hand, international partners' advice and trainings have little to no practical effect due to the existing procedural legislative challenges related to their “legal status”, which they do not have under the current domestic legislation. This means that they are not allowed access to case files and their formal advice cannot be officially referred to in case file documents. In order to rectify the situation, such efforts need to be better streamlined, aligned with international standards, effectively coordinated and overseen.

Public Demand for Justice

Lack of capacity of the Ukrainian domestic legal system to ensure effective justice and accountability adversely affects the ability of the national authorities and international partners to satisfy the Ukrainian public’s demand for justice.

This gap is exacerbated by the lack of political will from Ukraine’s political leadership to consider victims’ as well as the general public’s demands for justice as the positions and expertise of the existing legal professional community, and other relevant groups including military veterans.[35]

In September and December 2022, the sociological group “Rating” conducted all Ukrainian public opinion polls, which included, in particular, a number of questions regarding the administration of justice in the aftermath of the war.[36]

The polls revealed that Ukrainians sought immediate justice and accountability: according to the majority of the respondents (75%), trials on war crimes in Ukraine should start as soon as possible, 23% of the respondents believe that it should be done after the end of the war. As opposed to compensation for the damages suffered by the population of the country, punishment of the guilty was highlighted as the immediate priority: 75% of respondents believe that justice regarding war crimes should be based on the fair punishment of war criminals and only 21% believe compensation for the damage should take precedence. At the same time, as demonstrated by the results of the national poll and the survey of professional groups, the respondents prefer legitimate forms of justice guaranteed by the legal system with 55% being against lynching; respondents from the judicial and veteran communities have also demonstrated a high level of expectations regarding trials related to war crimes based on the due process standards.[37] At the same time, the polls demonstrate the majority of respondents noted that existing negative attitudes and prejudices of the society towards the court and law enforcement systems continue to persist during the full-scale invasion. Such attitudes are based on high levels of corruption and distrust of systems in general.[38]

Lack of communication/outreach by the state authorities was noted by 60% of the national polls respondents. The indicators show that a significant part of the population has information about potential international crimes of the Russian Federation, or is directly affected by hostilities, but they do not report them to investigative authorities, in particular, due to lack of information about legal protection tools.

The communication means chosen by the government of Ukraine mainly focus on general information about the situation on the frontlines and the “successful” investigations and prosecutions of Russia’s soldiers rather than providing explanation as to different justice and accountability pathways and ways to report the law enforcement authorities, to what end the protection the can expect from the state authorities.[39]

The interviewed respondents, both judges and veterans, have a sufficient level of understanding of the existing public demand. At the same time, there is awareness of threats that non-implementation, delay or non-compliance with public perceptions of justice can become a significant factor of destabilisation and reputational risks for Ukraine.[40]

In line with these results, the majority of respondents believe that special courts with the participation of domestic and international judges will be the most effective option for ensuring accountability for grave crimes (65% of respondents on average). The same opinion was expressed by some of the judges-respondents during focus groups and in-depth interviews. Another 22% of national poll participants consider international institutions effective, and only 7% consider national courts effective.[41]

The position of professional groups, in particular judges and the veteran community is somewhat different from the general public’s assessments. Thus, the collected opinions and ideas voiced by the judges during focus groups and in-depth interviews demonstrate the lack of a single vision and understanding the possible justice and accountability mechanisms can be used in Ukraine’s situation. Different levels of understanding of the issues at hand pertaining to the standards of due process in international law combined with the overall exhaustion from the decades long judicial reform has resulted in a sceptical perception and attitude towards changes among judges. The dominant conservative assessment of the judicial system by the judges is that it has enough capacity to process all the crimes committed during armed conflict in Ukraine albeit with some support and capacity building. Instead, the interviewed veterans mostly noted the need to use mixed (hybrid) mechanisms for prosecuting persons who committed crimes in the course of the military aggression against Ukraine, whereby the efforts of the domestic authorities will be reinforced alongside by the international investigative, prosecutorial authorities and judges. In their opinion, this will not only ensure a higher level of compliance with the standards of due process, but also provide for an appropriate level of informing the world about the crimes committed by the Russian military.[42]

Lack of communication/outreach by the state authorities was emphasised by 60% of the national polls respondents. The indicators show that a significant part of society, which has information about potential international crimes of the Russian Federation, or is directly affected by hostilities, does not turn to investigative authorities, in particular, due to lack of information about legal protection tools.

The initiated national tv marathon and other communication tools chosen by the government mainly focus on general information and the success of the investigation, without conducting legal and educational work to explain the importance and pathways, algorithms to contacting the law enforcement agencies for the legal protection of victims.

Certain categories of victims remain neglected, in particular, in anti-crisis communication. For example, families of those missing as a result of hostilities, who take a proactive position in searching for loved ones, may face a negative reaction from the authorities. At the same time, experts note that the dissatisfaction and disappointment of the victims can be used by the agents of the aggressor state to destabilise the situation in the country.